When the landlord says your apartment isn’t your home…

There are landlords in New York City who will use any available legal means to evict tenants from their rent-stabilized apartments. One weapon the law makes available to landlords is a claim of "non-primary residence." If your regulated apartment isn't where you primarily live, your landlord may be able to terminate your protections under the Rent Stabilization Code. If the court rules against you, you'll be evicted.

A non-primary residence case becomes a more dangerous threat when a tenant has other interests in real estate, such as a second residential property or vacation home. You also can become vulnerable to these claims whenever you spend an extended time away from your apartment, as sometimes happens with lengthy business engagements, or trips made for personal reasons that last longer than expected. Subletting your unit may also trigger a case of this sort against you.

As one New York City's leading Tenant rights attorneys, Jeffrey McAdams has handled many of these cases over the past 20 years, and has successfully defended his clients' rights to retain their homes. The good news is that it usually isn't quite so simple to prevail in court with a non-primary residence lawsuit. The landlord must present evidence that your apartment isn't actually your primary home, according to the definitions set forth under current rent stabilization laws.

You have the strongest defense when you can demonstrate that your apartment is the residence where you spend most of your time, and to which you have the strongest connections. Evidence of this can include:

as many tax returns as you have with the apartments address on them

your driver's license or New York State I.D. card

your motor vehicle registration

phone bills showing usage

utility, cable and other invoices

correspondence from government sources

voter's registrations

other relevant mail

The more evidence you have connecting you to your apartment, the harder it will be for the landlord to prove the unit isn't your primarily residence. A preponderance of evidence makes a stronger case to save your tenancy.

The Dreaded Golub Notice

When a landlord wants to initiate non-primary residence proceedings against you and sue for possession of your apartment, you'll receive a "Golub Notice" instead of a renewal lease at the time your lease term is up. These papers set forth the claim that your apartment isn't your primary residence and notify you that your lease won't be renewed when it expires.

Fortunately, if they're defective or you have the right set of facts, Golub Notices can be defeated. Generally speaking though, you'll need an experienced Tenants' lawyer to assist you, because non-primary residence claims are complicated and difficult to defend against. Being among the more complex Landlord Tenant cases, it isn't the kind of matter in which tenants usually succeed when they attempt to represent themselves.

Golub Notices have to say why the landlord believes you actually live somewhere else. An effective defense begins with challenging the absence of verifiable facts claimed in the notice. If you can show that the document has merely drawn the conclusion that the apartment isn't your primary residence without providing any factual support, the court can deem the Golub Notice to be invalid, and dismiss the proceeding without even going to trial. The landlord then has to renew your lease for one or two years, and start all over again from square one at the next renewal.

Since Golub Notices can only be initiated at lease renewal time, they can also be defused if they don't conform to specific the time frames set forth by the law. Once again, the result can be that the case against you is dismissed, which means that you'll have to be offered another one or two-year renewal. The landlord can sue again when your lease renews in the future, but at that point circumstances may change. You may also be in an even stronger legal position. It's possible a suit won't be pursued against you again.

Non-Primary Residence Litigation and Succession Rights. Landlords sometimes make a non-primary residence claim in cases involving succession rights to a rent-stabilized apartment. Frequently these occur when an adult child lives with an elderly parent. The parent may move into a nursing facility or go to live with another child. In other instances, the mother or father has a second home or other interests in residential property. Any of these circumstances can open the door for the landlord to initiate a non-primary residence eviction against the parent. The adult child must then assert succession rights to hold onto the apartment.

The interplay between non-primary residence claims and succession rights is very complicated. Succession rights are extremely valuable in New York City because it's almost impossible to find rent-stabilized apartments any longer. They almost always involve a court battle, especially when a non-primary residence issue arises, and tenants are well-advised to retain a qualified attorney to represent them. The landlord surely will have a lawyer fighting for his interests. So should you.

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